Burke v. Chamberlain's Lessee , 22 Md. 298 ( 1864 )

Bowie, J.,

delivered the opinion of this Court.

The lands in controversy are claimed by the appellee as heir at law of John C. B. Boone, and by the appellants as his devisees, or persons holding under them. The lessor of the plaintiffs is the grandson of Boone, and son of Prudence, the daughter of Elizabeth Hall, his lawful wife. The defendant, Eattle, claims under Stephen Parlot Boone, brother of the defendant Eleanor, which Stephen and Eleanor were tbe natural children of said Boone, and claimed as his devisees.

Three bills of exceptions appear in the Becord. The third is but a recapitulation of the prayers and points presented by the first and second, and need not be further noticed.

The first bill of exceptions is taken to the granting of the plaintiff's second prayer, and the refusal to grant the defendant's first. The Court below having instructed the jury at the instance of the appellee, that the record of the proceedings in partition, offered in evidence by the defendants, was not evidence of any of the facts stated in the partition, except in order to show, with other circumstances, color of title, in the event that the defendants shall attempt to defend their possession by proof of entry under color of title, which instruction was not excepted to. The plaintiffs, (the appellees,) further prayed the Court to instruct the jury as follows: “That conceding the due execution of the receipt of his lessor to Uriah Brown, his guardian, which is offered in evidence by the defendants, and that the same*is the original receipt incorporated in the transcript of proceedings of the Orphans Court of Baltimore County, — the said receipt and transcript are not evidence to connect the plaintiff with the proceedings on the petition for partition in this cause.”

From the language of this prayer, it would appear that the receipt of the lessor of the plaintiff to Uriah Brown, his guardian, was offered in evidence with the sole and especial object of showing a privity or connection between the plaintiff’s lessor and the proceedings for partition. If such was the case, it is difficult to see, how, the principal evidence being excluded without exception on the part of the defendants, the exclusion of subordinate testimony connecting the plaintiff with that which was already excluded, could be a subject of exception. The appellants contend that this receipt and the proceedings referred to, should be admitted as parol admissions, (not by way of estoppel in pais,) but to go to the jury, upon the question of title between the plaintiff and defendant, for which they cite a series of cases, none of which, in our opinion, sustain their position. The receipt in this case, contains no reference to the real estate in controversy, it pui'ports to be “in full for my share of the personal estate which fell due to me from the éstate of my grandfather,” (J. B. 0. Boone,) “deceased.” It has no resemblance to the class of incidental admissions, which Greenleaf says do not differ from direct admissions, nor does it amount to such conduct as would constitute evidence between the parties. It would be of dangerous tendency to allow a receipt from a ward to his guardian, to operate as a direct or incidental admission of all the facts introduced into the accounts of the latter, without specific reference to them.

In the case of Ridgely vs. Bond & Wife, 18 Md. Rep., 448, the facts referred to in- the original bill, wore also set out in a contract or agreement between and by Howard and Sarah Elder and Charles, her husband, filed with the bill as exhibit B, referring to which, this Court said: “This exhibit and the material allegations of the original bill, were admitted by the answer of Charles Elder and wife, who consented to a sale, and prayed the proceeds might bo brought into Court, to be distributed under its order, whereupon the Chancellor passed the decree of 1829, for the sale of the land, and directing the proceeds to be brought into Court for distribution. Such decrees do not fix the rights of the parties, (Fitzhugh vs. McPherson, 9 G. & J., 76;) but it is apprehended that Sarah Elder, and all claiming under her would be estopped by the admissions of the deed recognized and confirmed by her answer of 1826.” There was no error in our opinion, in the plaintiffs’ second instruction, to the granting of which the defendant excepted.

The 2nd point presented by the 1st bill of exceptions arises on the refusal to grant the defendant’s first prayer. “That if the jury shall find from the evidence that. Thomas Boone was seized in fee simple of three parcels of land devised by his will, offered in evidence by plaintiff, to his three sons, and shall find that the said three parcels constitute one entire farm or place upon which the said Thomas Boone resided at the time of making his said will; that he had no other farm or plantation, and that the said parcels so devised to his sons were not, in fact, during his lifetime, separated by the courses and distances mentioned in said will, or by any similar divisions, but were occupied by said Thomas Boone as a whole, then, by the true construction of the will of the said Thomas Boone, all of the said parcels constituted the dwelling plantation devised to his wife, Sarah Boone, for her life.”

The object of this prayer was to determine and fix by an instruction of the Court, on the minds of the jury, the true construction of the words “dwelling plantation.”

Assuming it to be the province of the Court to interpret the meaning of the will, it is difficult to conceive any circumstance or condition which would constitute or comply with the description “dwelling plantation,” not included in the defendant’s first prayer. All the facts enumerated, are put hypothetically, and submitted to the jury to find; none are assumed. If the testator had but one farm or plantation which he resided on at the time of making his will, and which was not divided into parcels, save as the same were separated by mathematical lines in the will, devising the several parts to his children; and the same continued in his possession so undivided until his death, the conclusion seems inevitable, the whole of that plantation was his dwelling plantation, and would pass as a unit under the devise of his dwelling plantation to his wife, Sarah Boone, for life.

It is said, however, the appellants were not prejudiced by this prayer, because the jury by the second of the defendant’s prayers (which was granted) were instructed if they found the testator Thomas Boone was seized of the “locus in quo,” and the same was a part of the “dwelling plantation” of the said Thomas, at the time he made the will offered in evidence by the plaintiff, then the same passed by virtue of said will to the wife. If is to be remembered, that the object of the first prayer was to avoid the necessity of convincing the jury of what the “dwelling plantation” consisted; to establish by the authority of the Court the position that the “dwelling plantation” included all the land devised by Thomas Boone’s will; from which the necessary consequence ensued, that the part then in dispute passed to his wife. Under the second instruction, the jury might find otherwise. The objection that there was no evidence of the holdings, on which the prayer was based, cannot apply to a will executed nearly a century past: it was impossible in the nature of things there shotild be living witnesses; if any record evidence of subdivisions existed, the plaintiff’s lessee could have produced them; the will itself was evidence, though slight, that the subdivisions were made “pro hac vice,” there being no reference in any of them to any other possessor, than the testator, or any tenement upon them.

That J. O. B. Boone had a devisable interest, in the reversion dependent upon the estate for life in Sarah Boone, cannot be doubted. Cruise Dig., Tit. “Devise,” ch. 3, secs. 1, 22, 24. “While the estate is thus in expectancy, the mesne heir, in whom the reversion or remainder rests, may do acts, which the law deems equivalent to an actual seisin, and which will change the course of the descent and make a new stock: Thus, he may by a grant or devise of it, or charge upon it, appropriate it to himself and change the course of the descent.” Vide Cook vs. Hammond, 4 Mason, 485, Story, J. John C. B. Boone, was the eldest son of Thomas, and survived his father, and his brother Richard, devisee in tail, who died without issue in 1180.

John O. B. Boone executed his will on the 16th of June 1197, after his intermarriage with Elizabeth Hales. Their marriage occurred on the 16th June 1791, as appears from the certificate, and it is a fair deduction from the absence of all testimony to the contrary, and the silence of his will, that the marriage had been unfruitful up to that time. He was then the father of two natural children acknowledged by him as such, and described afterwards in his will as “my son” and “my daughter.” Under these circumstances, declaring his intention to dispose of such worldly estate, wherewith it had pleased God to bless him, he devises (his mother being then living on the dwelling plantation,) as follows: “I give and bequeath to my son, Stephen Parlot Boone, one silver watch, one-half of all my household stuff, wagon and horses, and all cattle, together with all farming utensils, likewise one-half of all and everything that shall fall to me, the said John Coclcey Burley Boone, at my mother Sarah Boone’s decease, to him and his heirs forever.” This will was made, according to its preamble, when the testator was “very sick and weak in body.” He could not have entertained any hope of future offspring, and perhaps hut little of recovery. It is evident that under the circumstances, he did not design to die intestate of any interest in possession or reversion, which he might have been entitled to, as heir at law of Thomas Boone, after his mother’s death. The omission in the devise to Eleanor Parlot Boone, of the words of inheritance used in the devise to Stephen, is not sufficient to repel the presumption sustained by so .many cogent reasons, but must rather be attributed to the unskilfulness of the testator, or draftsman. The conclusion fsom these premises is that the Court below erred in refusing the defendant's first prayer.

The 2nd bill of exceptions presents the question whether the plaintiff can recover in ejectment, against the defendant, Eleanor Burke, she being a feme covert, at the time of the delivery of the declaration on ejectment, and her husband not joined with her in the pleadings. The defendant, Eleanor, as appears by the record, entered into the consent rule, and confessed lease entry, and ouster; after which she pleaded not guilty separately, waiving by that plea the benefit of coverture. Pleas in abatement are never favored, and to let the defendant set up her coverture after issue joined on the merits, would operate as a surprise, and defeat the policy of the law regulating such defences. The case of Doe demise of Merigan vs. Daly, 55 Eng. C. L. Rep., 934, is strongly analagous; in that case Lord Denman held, that a tenant on the demise of the husband, might recover against the wife who held possession, and had entered into the consent rule. His language is very strong and apposite; “we do not see how this defendant can avoid the effect of the consent rule, which puts in issue nothing but her title. It is said that there is such common interest of husband and wife in his property, that she cannot by law be guilty of trespass upon it. We cannot accede to this doctrine as applicable to an ejectment, for the relation of husband and wife certainly does not justify her in taking forcible possession of his property to his exclusion. There are technical difficulties in an ‘adverse proceeding between married persons which are raised for the purpose of defeating justice, by restoring to the owner land unlawfully held from him. But this attempt is successfully met by a technical answer, for John Doe claiming under a demise from the husband, and not the husband himself, is the plaintiff on the record. If a tenant claiming under a demise from the husband, may recover in this form of action against the wife, we see no reason why those claiming under third persons may not. The objection of coverture seems, if possible, more strongly presented in the former case. The instruction prayed by the defendant, Eleanor Burke, was, in our opinion, properly refused, but there being error in the refusal of the defendant’s first prayer, as before shown in this opinion, the judgment below must be reversed.

(Decided November 17th 1864.)

Judgment reversed with costs to the appellants, and procedendo awarded.